Error and/or relief
The victim restitution award for expenses paid by the Victim Compensation Board violates the defendant’s right to due process and is reversed because the prosecution did not present bills to establish the amount paid as required pursuant to section 1202.4(f)(4)(B). The matter is remanded for the court to hold a new restitution hearing. Additionally, The abstract of judgment should be corrected to reflect the defendant was sentenced to 40 years to life (rather than 50 years to life).
First Holding:
The only evidence presented at the restitution hearing was the set of California Victim Compensation Board forms submitted by the prosecution, over the objection of counsel. No certified copies of the bills were introduced, nor was a declaration under penalty of perjury by the custodian of records. Restitution for expenses paid by the California Victim Compensation Board requires proof established by copies of bills submitted to the Board, reflecting the amount paid, pursuant to section 1202.4(f)(4)(B).
Authority:
PEN 1202.4(f)(4)(B)
Second Holding:
In California, crime victims have the right to receive restitution for losses attributable to the defendant’s actions. Indeed, in every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court.
Section 1202.4 does not, by its terms, require any particular kind of proof. However, the trial court is entitled to consider the probation report, and, as prima facie evidence of loss, may accept a property owner’s statement made in the probation report about the value of stolen or damaged property. This is so because a hearing to establish the amount of restitution does not require the formalities of other phases of a criminal prosecution.
When the probation report includes information on the amount of the victim’s loss and a recommendation as to the amount of restitution, the defendant must come forward with contrary information to challenge that amount.
Authority:
Cal. Const. art. I, sec 28(b)(13)(B)
PEN 1202.4(a)(1)
People v. Lockwood (2013) 214 Cal.App.4th 91, 96
People v. Holmberg (2011) 195 Cal.App.4th 1310, 1320
Third Holding:
However, section 1202.4(f)(4) includes special provisions that are applicable when, as here, state funds are used to provide assistance to or on behalf of a victim.
The amount of assistance provided by the Restitution Fund shall be established by copies of bills submitted to the California Victim Compensation Board reflecting the amount paid by the board and whether the services for which payment was made were for medical or dental expenses, funeral or burial expenses, mental health counseling, wage or support losses, or rehabilitation.
Certified copies of these bills provided by the board and redacted to protect the privacy and safety of the victim or any legal privilege, together with a statement made under penalty of perjury by the custodian of records that those bills were submitted to and were paid by the board, shall be sufficient to meet this requirement.
The section 1202.4(f)(4)(B) restitution order lacks the necessary evidentiary support and must be vacated and the case remanded for a new restitution hearing.
Authority:
PEN 1202.4(f)(4)
People v. Lockwood (2013) 214 Cal.App.4th 91, 96
Fourth Holding:
The abstract of judgment states defendant was sentenced to a term of 50 years to life on count 1. It also reflects defendant was sentenced to 25 years on the section 12022.53(d) enhancement. However, defendant was sentenced to 15 years to life on count 1 and 25 years to life for the section 12022.53(d) firearm enhancement.
When an abstract of judgment does not reflect the actual sentence imposed in the trial judge’s verbal pronouncement, this court has the inherent power to correct such clerical error on appeal, whether on our own motion or upon application of the parties. On remand, the trial court is instructed to prepare a corrected abstract of judgment.
Authority:
People v. Jones (2012) 54 Cal.4th 1, 89